Delhi High Court seeks Central government response to PIL challenging ban on adopting frozen embryos

The Delhi High Court on Wednesday issued notices to the Central government on a plea challenging the laws that impose a blanket prohibition on the adoption of frozen embryos [Dr Aniruddha Narayan Malpani v Union of India & Anr]. 

A Division Bench of Chief Justice Devendra Kumar Upadhyaya and Tejas Karia directed the government to file its reply in six weeks. 

The case will be heard next on April 27. 

An embryo is a very early stage of human development that forms after an egg is fertilised by a sperm. In in-vitro fertilisation (IVF), an embryo is created in a lab by fertilising an egg with sperm. After a few days of development, the embryo can either be transferred into a woman’s uterus to achieve pregnancy or frozen for future use. 

The public interest litigation (PIL) petition filed by renowned IVF specialist Dr Aniruddha Narayan Malpani states that the ban on adopting such embryos violates a couple's rights under Article 14 and 21 of the Constitution of India.

He has challenged Sections 25(2), 27(5), 28(2) and 29 of the Assisted Reproductive Technology (Regulation) Act, 2021 and Rule 13(1)(a) of the Assisted Reproductive Technology (Regulation) Rules. 

Malpani has argued that these provisions ban even altruistic, voluntary, consent-based donation of pre-existing frozen embryos of a commission couple for adoption by another infertile couple, where both partners suffer from infertility.

The PIL states that the provisions result in unequal and discriminatory treatment between similarly placed infertile couples, by permitting access to double-donor IVF – where both the egg and sperm come from donors -- while denying access to embryo adoption. The plea states that both options are functionally and ethically equivalent. 

“Such arbitrariness strikes at the heart of Article 14. Further, such absolute prohibition creates an arbitrary and constitutionally untenable distinction between embryos created for IVF using double donor gametes and pre-existing embryos donated altruistically under identical ethical, medical, and regulatory safeguards,” the plea states. 

The petition highlights that thousands of healthy embryos created during IVF procedures are mandatorily destroyed after ten years under the current law, even when donor couples are willing to donate them and recipient couples are in need. According to Dr Malpani, this amounts to an unreasonable restriction on reproductive autonomy and decisional privacy.

“Furthermore, such a prohibition raises fundamental constitutional questions regarding the reproductive rights of millions of infertile couples in India, who are denied access to healthy, altruistic embryo adoption, a medically established, scientifically validated, globally recognised, and ethically sound reproductive option. The right to make reproductive choices, including the decision to have a child, is an integral facet of the right to life, dignity, autonomy, and privacy guaranteed under Article 21 of the Constitution,” the plea states. 

Senior Advocate Menaka Guruswamy appeared for the petitioner. The PIL has been filed through advocate Mohini Priya.